fully explaining the legal rationale for controlled digital lending, as well as situations in which this rationale is the strongest.
For this paper we define “controlled digital lending” (CDL) just as the Statement does:
CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation. For example, if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.[1]
Thus, CDL would permit circulation of copies equal to those that had been legitimately acquired by the participating libraries. When the digital copy is being read by a patron, however, the corresponding physical copy is restricted and unavailable for consultation, so there is no situation in which the library is getting use of two copies for the price of one. A library can lend a physical book to a patron through standard circulation or to another library through interlibrary loan. What CDL does do is shift that lending to a new format that opens up access possibilities for readers with disabilities, physical access limitations, research efficiency needs, or other needs for digitally-accessible content.
A CDL system is not a brand-new concept. There are multiple versions of CDL-like systems currently being used in libraries. The idea was first explored in the pioneering article “Building a Collaborative Digital Collection: A Necessary Evolution in Libraries”[2] by Michelle Wu, Professor of Law and Law Library Director at Georgetown University School of Law. Later, the Internet Archive created the “Open Library: Digital Lending Library” project, which has
- ↑ Position Statement on Controlled Digital Lending by Libraries (hereafter “Statement”) available at https://controlleddigitallending.org/statement
- ↑ Michelle M. Wu, Building a Collaborative Digital Collection: A Necessary Evolution in Libraries, 103 Law Libr. J. 527 (2011). See also Michelle M. Wu, Piece-by-Piece Review of Digitize-and-Lend Projects Through the Lens of Copyright and Fair Use, 36 Legal Ref. Serv.Q. 51 (2017).
